December 5, 1995
MARGARET WARNER: Joining me is Stuart Taylor. He's a senior writer at "American Lawyer" and at "Legal Times," and a regular on this program. Welcome, Stuart. First, very briefly, give us the legal history of how we got to this point where you have the Justice Department and two states defending these racially drawn districts.
STUART TAYLOR, American Lawyer Magazine: Well, this is the latest act in a legal drama that reaches deep into our history, as was just indicated. As everyone knows, for most of this century and some of the past century blacks were effectively disenfranchised across most of the South. They couldn't vote. That was largely fixed by the Voting Rights Act of 1965, which did away with literacy tests and other gimmicks to prevent blacks from voting. But another problem came into focus, which is racially polarized voting. Black people tend to be isolated if districts are drawn in the usual, traditional way, in majority white districts in which blacks can't get elected and the candidates they prefer can't get elected because of block voting by whites and blacks. Some blacks are in urban ghettos, and that's different, but lots of them are scattered around. In order to address that problem in the 1982 Amendments to the Voting Rights Act, Congress clearly indicated that at least sometimes you can take race into account to draw majority black or majority Hispanic districts for the purpose of ensuring, in the words of the Act, are that blacks and Hispanics will have as good an opportunity as white people to elect representatives of their choice. It wasn't quite clear in the Act, which is very ambiguous, how far that was supposed to be taken, but in a 1986 decision, a more liberal Supreme Court than the one we have now, in an opinion by Justice Brennan, now retired, took it pretty far, and wrote a decision that was widely interpreted as saying whenever you can draw a majority black, a majority Hispanic district, you must, as long as it's reasonably compact, and that's a very subjective judgment, and as long as there's racial block voting which otherwise would prevent blacks and Hispanics from wanting office.
MARGARET WARNER: So on the basis of that, and this new Census, that's when you had these state legislatures coming in with the Justice Department looking over their shoulder and creating these districts.
MR. TAYLOR: Exactly. After the reapportionment in 1991, all over the country with the Justice Department pushing it, and this was a Republican, Bush Justice Department pushing it for their own reasons, new black and Hispanic majority districts would create quite a few more black and Hispanic districts than had existed in 1990.
MARGARET WARNER: All right. So tell me now what happened in Court today. First of all, is there any significant difference between the two cases that were heard, Texas and North Carolina?
MR. TAYLOR: There are lots of differences. The common thread is in both cases there were districts created clearly for the purpose of creating majority minority districts, two black districts in North Carolina, two black districts and one Hispanic district in Texas, and in both cases incumbent protection was another purpose that threaded through the whole process. The main differences are that in North Carolina, the Supreme Court has already looked at these districts and has already said we don't like them. In Texas, the case is a little bit newer, and there are a number of factors, for example, there are urban districts, and they're more compact in a sense than the North Carolina districts are.
MARGARET WARNER: Okay. So tell me about court today, and what could you tell about what the Justices made their comments and questions about what issue is going to be the dividing issue?
MR. TAYLOR: It was a very lively argument today, in both cases two hours and forty minutes of arguments, which is extraordinary, and the Justices, eight of them, were very actively engaged. Sometimes there were exchanges between Justices that seemed a little bit angry. And as was evident from prior decisions, you can pretty well count four votes to strike down just about any minority majority district that's a little bit irregular in shape, and you can count four votes to uphold, four of the more liberal Justices to uphold just about any majority minority district you can imagine. And in the middle, you have Justice Sandra Day O'Connor who wants, who wants to uphold them some of the time, not all of the time. Now, I think most people walking out of the arguments had the impression that she was leaning towards striking down all of the districts before the court today that at least one of the two North Carolina districts, the other one for technical reasons of standing in the Court may not decide at all, and probably all three of the Texas districts. Predictions are hazardous that she in her questioning betrayed an animus against all of those districts because they are so irregular in shape.
MARGARET WARNER: So why do you even call her a swing vote?
MR. TAYLOR: Because I expect that if she does strike them down--she said in the past she only wants to strike down extreme instances of racial gerrymandering. If she strikes these down, her past opinions suggest she will say this is really too extreme. This, for example, is one of the Texas districts that is at issue before the Court, a black majority district in Dallas. And Justice O'Connor looks at this map and says that's really ugly, let's get rid of that. However, she also said, if you can draw a majority black district here that isn't so weird in shape, then maybe I'll uphold it. The fact of the matter is you can. This district got as weird a shape as it is not so much because they were trying to put the majority of blacks in it; it's because they were also trying to protect white incumbents in neighboring districts.
MARGARET WARNER: Who might be there or there. Yeah.
MR. TAYLOR: Instead of, they could have drawn a nice compact black district, but, instead, some white Democrat said, oh, I want some of these blacks over here, I want some over here, and so in order to accommodate them, plus getting the majority black district, they sent these weird squiggles and arms, as Justice Souter called them today, off hither and yon to pick up other voters.
MARGARET WARNER: So they--if the Court sends all these back to the states, what happens then?
MR. TAYLOR: It's a formula for more and more litigation, because there's so much uncertainty there among legislators, voters, and lawyers, lower court judges as to what will pass muster with the Supreme Court in this area of racial districting, and what won't, that there's mass confusion, and although one might hope that the Court's decisions in this case, in these two cases, would resolve some of that confusion, most of the lawyers I know are betting that they will add to it or at least leave it, leave it very much a subject for more and more litigation.
MARGARET WARNER: And as a political matter, they tried to redraw this one, let's say, into a compact black district. You would be pitting these white incumbents, some of them are also Democrats, some of them Republicans. I mean, it's two, it's two competing views of what's fair or what's right or politically difficult.
MR. TAYLOR: Yeah. It is, it is very politically difficult, because if you draw compact black districts in some of these places--and they really have to be compact--you'll be sacrificing probably white Democrats in neighboring districts. And one reason these Texas districts got to look like this is there was a very energetic effort by the Democrats in Texas, who are then at least a majority to protect the incumbent white Democrats by not bleeding their districts of too many reliable Democratic voting black people.
MARGARET WARNER: Well, Stuart, thanks a lot.
MR. TAYLOR: Thank you.